Hazlett v Presnell

[1982] HCA 58

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan and Deane JJ.

HAZLETT v. PRESNELL

(1982) 149 CLR 107

22 October 1982

Constitutional Law

Constitutional Law—States—Boundary between New South Wales and Victoria—Island in River Murray—Establishment of Victoria by 13 &14 Vict. c. 59—Course of River Murray to be boundary—Mainstream north of island of establishment—Redefinition of boundary by 18 &19 Vict. c. 54—Whole watercourse within New South Wales—Colonial legislatures empowered jointly to redefine boundary—Agreement by Premiers after surveys that island in Victoria—Authority to determine boundary—Acquiescence in—Acceptance—Passage of time—13 &4 Vict. c. 59, s. I.—18 &19 Vict. c. 54, s. V.—24 &25 Vict. c. 44, s. 5.

Decision

October 22.
THE COURT delivered the following written judgment: -
Some 20 kilometres down the River Murray from the Victorian city of Swan Hill, the waters divide into two streams. Each stream follows a meandering course in a general westerly direction. They convolve more than 4 kilometres to the west. The land between them is called Beveridge Island. It has long been regarded as part of the territory of Victoria. It is convenient to distinguish between the two streams that flow around Beveridge Island by referring to them as "the northern stream" and "the southern stream". (at p111)

2. Under the Water Act 1958 (Vict.), it is an offence to take water from the River Murray, for the irrigation of land in Victoria, without a licence or permit granted or issued by the State Rivers and Water Supply Commission. The appellant, William Arthur Hazlett, has been charged in the Magistrates' Court at Swan Hill with having illegally taken water from the southern stream at Beveridge Island for use in irrigation of the island. By way of defence to that charge, the appellant submitted in the Magistrates' Court that Beveridge Island, which he holds, and has for some years held, on lease from the Crown in right of the State of Victoria, was, in truth, part of the State of New South Wales. The learned Stipendiary Magistrate ruled against Mr. Hazlett on that submission and adjourned the proceedings to enable the question to be tested by way of action for declaratory relief in the Supreme Court of Victoria. Proceedings seeking declaratory and injunctive relief were instituted in the Supreme Court. They were heard by Crockett J. who held that Beveridge Island was part of Victoria and dismissed the claim (1982) VR 137 . The present appeal is brought by Mr. Hazlett from that decision. The respondents to the appeal are the learned Stipendiary Magistrate (Mr. Presnell S.M.), the State Rivers and Water Supply Commission, the Minister of Lands (Vict.) and the State of Victoria. Upon the hearing of the appeal, the State of New South Wales intervened to argue that Beveridge Island forms no part of its territory. (at p111)

3. At the time the Colony of Victoria was established in the mid-nineteenth century, the northern stream, which follows the original watercourse of the river, was the main stream in terms both of the volume and average width of its waters. The length of the northern stream is 11.2 kilometres; that of the southern stream is 5.7 kilometres. From 1853, when a paddle-steamer named Lady Augusta navigated the southern stream in the course of a chronicled "experimental trip", the shorter distance of the southern stream has caused it ordinarily to be used by shipping. Over the past century siltation has decreased the flow of water in both streams but with more pronounced effect in the case of the northern stream with the result that the greater volume of water now passes down the southern stream. (at p111)

4. Beveridge Island has an area of 1,116 hectares and maximum north-south and east-west dimensions of about 3.3 kilometres and about 4.2 kilometres respectively. It bears the family name of Andrew and Margaret Beveridge who, with their six sons and one daughter, arrived at Port Phillip in December, 1839. In 1846, two of the sons, Andrew Jnr. and Peter, squatted on, and obtained station rights to, a large area of land to the south of the River Murray with a total river frontage of some 66 kilometres including the frontage to the southern stream opposite the island. There they established Tyntynder Station which was operated as a grazing property by the Beveridge Family. In due course, part of the land included in Tyntynder was converted to freehold and part converted to grazing leasehold with pre-emptive rights. Beveridge Island, which was subject to flooding, was also used by the Beveridges for grazing purposes and comprised part of Tyntynder. It remained, however, the property of the Crown. Notwithstanding the building, in more recent times, of levees on the island, it is still subject to occasional inundation. There are some improvements but no houses on the island. (at p112)

5. In 1872, the Judicial Committee of the Privy Council advised in favour of Victoria in a dispute between the Colonies of New South Wales and Victoria over the ownership of a strip of land known as Pental Island. Pental Island, which is "about 15 miles in length and 2 miles in average breadth", is bounded on the north by what is undoubtedly the River Murray and on the south by what was claimed by New South Wales, and denied by Victoria, also to be, for relevant purposes, that river. With the agreement of the two Colonies, the matter was referred by the Crown to the Judicial Committee pursuant to the Judicial Committee Act 1833 (Imp.). The Judicial Committee, acting in an arbitral role, gave its decision without publishing the underlying reasoning. The case excited a good deal of interest in the two Colonies, not least, no doubt, among the settlers on Pental Island who had paid rent to Victoria, then to New South Wales and finally, until the case was resolved, to both Colonies (see W. Harrison Moore, "The Case of Pental Island", Law Quarterly Review, vol. 20 (1904), p. 236). (at p112)

6. On 6 February, 1873, following the decision in the Pental Island Case, two members of the Beveridge family wrote to the colonial administration in Melbourne inquiring whether the Victorian Government claimed Beveridge Island "as part of Victoria". This led Victoria to raise with New South Wales the question of which Colony included Beveridge Island in its territory. The matter was dealt with at the level of Colonial Secretary (N.S.W.) and Chief Secretary (Vict.) who were, at the time, the respective first Ministers in responsible colonial Governments. (at p112)

7. It is common ground that the boundary between the Colonies of New South Wales and Victoria had been defined by the Imperial Acts 13 &14 Vict. c. 59 and 18 &19 Vict. c. 54. The first of those Acts (the Separation Act of 1850) detached from the mother Colony of New South Wales and established as the Colony of Victoria "the Territories now comprised within the said District of Port Phillip, including the Town of Melbourne, and bounded on the North and North-east by a straight Line drawn from Cape How (sic) to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia". The "said District of Port Phillip" had been established in 1842 by the Imperial Act 5 &6 Vict. c. 76 as an electoral district of the Colony of New South Wales with a boundary defined in terms which, for present purposes, corresponded with the above-quoted words of the 1850 Act. Section V of the Act of 1855 recited that doubts had been entertained as to the true meaning of the description of the boundary of the Colony of Victoria contained in the Act of 1850 and enacted that "the whole Watercourse of the said River Murray, from its Source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales". (at p113)

8. When the question whether Beveridge Island was part of New South Wales or Victoria arose in 1873, the approach was adopted by the Governments of both Colonies that the matter was to be resolved by determining which of the northern and southern streams constituted the main channel of the River Murray in that area: the Colonies were agreed that the main channel constituted, for relevant purposes, the River Murray with the result that the course and watercourse of the river were to be determined by reference to it. In adopting that approach, they may have been influenced by what was said by some members of the Privy Council in the course of argument in the Pental Island case and the view that had been expressed in the United States Supreme Court that where a river divides into two branches and neither "has acquired the name, in exclusion of another, the main branch, to its source, must be considered as the true river" (Doddridge v. Thompson (1824) 9 Wheat 469, at p 473 (6 Law Ed 137, at p 138) ). By arrangement between the Governments of the two Colonies, Mr. Betts of the Survey Department of New South Wales and Mr. Allan of the Department of Lands and Survey of Victoria made and took what were thought to be the surveys, levels, soundings and hydrometric measurements necessary to determine "the main channel of the Murray River at Beveridge Island". These showed that the northern stream was "considerably" the deeper and the broader and discharged 9,094 gallons per second compared with 6,404 gallons per second discharged from the southern stream. The question of ownership of Beveridge Island was settled, between the two Colonies, by letter of 20 June, 1876 from the Colonial Secretary of New South Wales to the Chief Secretary of Victoria. The text of that letter was as follows:

"With reference to my letter of the 14th of September last and previous correspondence respecting the arrangement for determining the main channel of the Murray River at Beveridge Island, I have now the honour at the instance of my Colleague the Secretary for Lands to inform you that, as under the reports of Mr. District Surveyor Betts and the Surveyor General of this Colony there is no question whatever that Beveridge Island belongs to Victoria, the Government of New South Wales lays no claim to it."

From that time, successive colonial and state Governments of New South Wales and Victoria have accepted and acted on the view that, for the purposes of determining the actual boundary between New South Wales and Victoria, the course and whole watercourse of the River Murray in the vicinity of Beveridge Island were and are the course and watercourse of the northern stream with the result that Beveridge Island was and is part of Victoria. Thus, in 1885, the island was proclaimed a reserve for a Victorian Agricultural College and Experimental Farm pursuant to the Land Act 1884 (Vict.) and Agricultural Colleges Act 1884 (Vict.). It retained that status until 1944 when, pursuant to the Agricultural Colleges Act 1944 (Vict.), the land was deemed to be unalienated Victorian Crown land and vested in the Victorian Board of Land and Works. By the Public Lands and Works Act 1964 (Vict.), the Board of Land and Works was dissolved and its powers, authorities and duties became exercisable by the Victorian Minister of Lands. Mr. Hazlett is currently lessee of the island under a fifteen years lease granted by the Minister of Lands (Vict.) on 1 July 1971. (at p114)

9. In Ward v. The Queen (1980) 142 CLR 308 , this Court examined the combined effect of the provision in the Separation Act of 1850 establishing as part of the boundary of the land detached from New South Wales "the Course of" the River Murray and the subsequent provision in the Act of 1855 that "the whole Watercourse of the said River Murray . . . is and shall be within the Territory of New South Wales". It was held by the Court that the "Watercourse of the said River Murray" referred to in the 1855 Act was not the constantly changing stream of water but the contour feature within which the waters of the River Murray flowed and that, where the course of the River Murray constitutes the boundary between New South Wales and Victoria, the boundary line runs along the top of the southern bank with all territory to the north being in New South Wales. The main judgment was that of Stephen J. in which Aickin J. and Wilson J. concurred and with which Barwick C.J., Gibbs J. and Mason J. each agreed subject to some individual comments. Stephen J. placed reliance on colonial history before 1855 to identify the doubts which, according to the recital in the 1855 Act, had been entertained as to the true meaning of the description of the boundary, such doubts being largely related to the power of the Colony of New South Wales to exact customs duties in respect of goods brought onto the River Murray and to administer its customs laws on the waters thereof. A majority of the Court (Barwick C.J., Gibbs, Mason and Murphy JJ.), in agreeing that the phrase "the whole Watercourse" embraced the contour from the top of the bank on the one side to the top of the bank on the other, placed reliance more on the use of the word "whole" than on historical considerations. Stephen J. (1980) 142 CLR, at p 336 elucidated the reference to the "bank" by adopting the description given in Howard v. Ingersoll (1851) 13 How 379, at p 427 (14 Law Ed 189, at p 209) : "the banks of a river are those elevations of land which confine the waters when they rise out of the bed". (at p115)

10. In Ward's Case, Ward had been convicted of murder in Victoria. The question involved in the appeal was whether the victim was, at the time he was shot and killed by Ward, within New South Wales or Victoria. Ward had been standing on the top of the southern bank of the river: the victim was fishing on the water's edge some 30 ft below. There was no suggestion that there had been any dramatic change in the southern bank of the river at the relevant place since 1850 and it was commo ground that a decision that the boundary line ran along the top of the southern bank of the river would have the result that the locus of the alleged crime, being where injury was sustained, was in New South Wales. It was therefore strictly unnecessary to determine whether the boundary between the two States was fixed by reference to what was the top of the southern bank of the River Murray in the mid-nineteenth century or whether the boundary moved in accordance with any subsequent changes to the identity or conformation of the bank. Such changes could result from the gradual and imperceptible processes of erosion or accretion or from the more sudden and observable action of avulsion. Stephen J. (1980) 142 CLR, at p 338 expressed the view "that, at least in the case of processes of gradual erosion or accretion, the common situation will prevail and, as the bank changes, so will the boundary line which it marks". As we read his judgment, Stephen J. did not express any view as to whether the boundary would change to conform with the top of the southern bank as altered by any action of avulsion. Murphy J. (1980) 142 CLR, at p 341 acknowledged force in the suggestion that the boundaries fixed by the Imperial Act "were to remain irrespective of changes in the course of the river or of the banks". (at p116)

11. At common law, where land is bounded by a navigable river and the rule ad medium filum does not apply, the title to the land is applicable to the land as it may be from time to time changed by the gradual and imperceptible processes of erosion and accretion. This is so even if there be the means of identifying the original bounds of the property (see, generally, Williams v. Booth (1910) 10 CLR 341, at pp 350-351, 360-361 ; Southern Centre of Theosephy Inc. v. South Australia (1982) AC 706, at pp 716-721 ). This distinction between accretionary and avulsive changes has been recognized in international law (see Hyde, International Rivers, (1918) p. 29; Bouchez, "The Fixing of Boundaries in International Boundary Rivers", International and Comparative Law Quarterly, vol. 12 (1963), p. 789, at pp. 799ff; Oppenheim's International Law (ed. Lauterpacht), 8th ed. (1955), vol. 1, p. 533; O'Connell, International Law, 2nd ed. (1970), vol. 1, pp. 428-430) and accepted by the United States Supreme Court as applicable to the case where a river constitutes the boundary between two States of the Union. Thus in Arkansas v. Tennessee (1970) 397 US 88, at pp 89-90 (25 Law Ed 2d 73, at p 75) , a case concerned with avulsive changes to the Mississippi River where the state line was the thalweg (the middle of the main or commonly used navigable channel), the Supreme Court repeated the basic rule it had laid down in a previous case concerned with similar avulsive changes:
"This is a classic example of the situation referred to in an earlier case between these States, Arkansas v. Tennessee (1918) 246 US 158, at p 173 (62 Law Ed 638, at p 647) where we said, 'It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel'". (at p117)

12. There is nothing in the subject matter or context of the provisions of the Imperial Acts of 1850 and 1855 fixing the New South Wales and Victorian boundary which would justify the conclusion that the ordinary principles of common law as to changes by erosion and accretion were not applicable so as to result in the boundary changing in accordance with such changes to the course or whole watercourse of the river or, more particularly, to the south bank. Nor is the application of those principles excluded by practical considerations. The requirement that erosion and accretion must be gradual and imperceptible (see Southern Centre of Theosophy Case (1982) AC, at pp 720-721 ) excludes, from those processes, sudden variations in the boundary or dramatic alterations in the status, rights or duties of individuals. Indeed, acceptance of the ordinary principles as to erosion and accretion is actually in the interests of certainty since the effects of gradual and imperceptible erosion and accretion along the banks of a great river will inevitably be incapable of precise determination. We respectfully agree with Stephen J. (in Ward's Case (1980) 142 CLR 308 ) that, upon the proper construction of the statutory provisions, the ordinary common law principles of erosion and accretion are applicable. Different considerations and principles apply in respect of the more sudden and observable changes which result from avulsion. (at p117)

13. There is no direct authority on the question whether the boundary between New South Wales and Victoria was, subject to the effects of gradual erosion and accretion, fixed by the Imperial Acts of 1850 and 1855 by reference to the "Course" and "the whole Watercourse" of the River Murray in the mid-nineteenth century or whether the boundary which those Acts established varies from time to time with changes in the identity or configuration of the watercourse of the flowing waters of the river. The recorded concern to ensure that New South Wales could enforce its customs laws on the river and the express statutory provision that "the whole Watercourse . . . shall be within the Territory of New South Wales" lend some support for the view that the boundary between the two Colonies was intended to be a variable one which would ensure that, while the waters of the river flowed, they flowed in New South Wales regardless of changes of course that might occur over the years (cf. per Stephen J., Ward's Case (1980) 142 CLR, at p 337 ). On the other hand, the precise location of a boundary can have important effects not only in terms of abstract questions of legislative competence but in terms of the lives, rights, duties and liabilities of people. It has long been known that the course of a river can be dramatically changed by natural phenomenon. This is particularly so in the case of a river like the River Murray whose waters are prone to overflow their banks in time of flood and cease to flow in time of drought. It is unlikely that it was the intention of the Imperial Parliament that a sudden and observable change in either the source of the River Murray nearest to Cape Howe or in the course of the river would involve not only the conversion of territory of one Colony into that of the other but could also involve a change of residence, status, rights and liabilities for those who lived in the affected area. To adapt the words of Isaacs J. in South Australia v. Victoria (1911) 12 CLR 667, at p 723 , it would seem unlikely that the Imperial Parliament intended that the titles of settlers would become insecure or void, judicial jurisdiction should arise and disappear, laws come into or cease from operation, in conformity with changes in the source or course of a river whose geomorphic history and variability were unknown and which was unsurveyed and partly unexplored. Indeed, as O'Connor J. (1911) 12 CLR, at p 712 commented in that case "the very term 'boundary' connotes in its ordinary natural meaning a line of division capable of being permanently fixed" (see, also, per Stephen J., Ward's Case (1980) 142 CLR, at p 326 ). (at p118)

14. On balance, it appears to us that the provisions of the Imperial Acts of 1850 and 1855 should be construed as defining the boundary of the new Colony of Victoria by reference to the then identity of the River Murray with its then existing course and watercourse with the result that the boundary line was permanently fixed subject only to alterations subsequently resulting from gradual and imperceptible erosion and accretion. The identification of the boundary line on the terrain is not, however, a question of mere construction. It involves the identification of what was the River Murray at the relevant place and the identification of the then course, whole watercourse and southern bank of the river so identified. Those matters are largely questions of fact (see Ward's Case (1980) 142 CLR, at p 336 ; Re Boundary between Canada and Newfoundland in Labrador Peninsula (1927) 137 LT 187 ). (at p118)

15. Where the waters of a river divide into two streams which subsequently reunite, there are three possibilities as to the identification of the river between the point of division and that of reunion. The first is that both streams remain the one river. The second and third are that one or other of the streams comprises the river while the remaining one is a separate river, stream, creek or canal. Whether or not the two streams while divided remain the one river will depend on a weighing of topography and popular reputation. If, for example, the waters of a great river are divided by a small island for a distance of but a few metres, it would be plain that the two streams remained the one river. On the other hand, if the waters of a river divide and reunite some hundreds of kilometres after winding through different lands and being fed by different tributaries, it would seem difficult to treat both as the one river while in their separate state. Between such extremes, local reputation as to what constitutes the river can be important and, in some cases, decisive. (at p119)

16. If the identity of the River Murray was to be determined by reference only to present topography, there would plainly be something to be said for the view that the two streams that flow around Beveridge Island are part of the one river and that the watercourse of each stream is part of the whole watercourse of the River Murray. That is not, however, the question before the Court. The question before the Court is the identification of the river in the mid-nineteenth century for the purposes of fixing, subject to the subsequent effects of erosion and accretion, the boundary between New South Wales and Victoria at Beveridge Island. That question was, as has been mentioned, raised between the Governments of the Colonies over 100 years ago. At the time, responsible government had been established in each Colony. Accord was reached, between the senior Ministers of the two Colonies who were speaking for their respective Governments, that the watercourse of the river was the watercourse of the northern stream. That accord represented the resolution of what was essentially a question of fact. It is not suggested that it was reached otherwise than honestly and without collusion. The practical effect of that accord has been that the boundary line in the area has been accepted by New South Wales and Victoria as running along the southern edge of the watercourse of the northern stream. On the basis of it, legislation has been enacted and accepted, rights have been recognized and regulated, and land has been leased and assigned. It becomes necessary to determine the legal effect of that accord between the two Colonies and the subsequent general acceptance of the boundary line defined thereby. (at p119)

17. Section V of the Imperial Act of 1855 contained a proviso that "it shall be competent for the Legislatures of the said Two Colonies, by Laws passed in concurrence, with each other, to define in any different Manner the Boundary Line of the said Two Colonies along the Course of the River Murray, and to alter the other Provisions of this Section". Apart from that proviso, the two Colonies did not, between 1855 and 1861, possess authority to alter the definition of the boundary contained in the Imperial Acts. In reaching accord on the location of the boundary in the vicinity of Beveridge Island, the two Colonies were not, however, purporting to alter the definition of the boundary contained in the two Imperial Acts. They were concerned with the identification of the defined boundary on the surface of the earth. Plainly, neither Colony was competent unilaterally to determine the actual boundary line so as to bind the other Colony. Putting to one side, for the moment, the effect of the Imperial Act 24 &25 Vict. c. 44 (1861), there was no provision in any relevant Imperial Act or letters patent which conferred express power and authority upon the two Colonies jointly to determine the actual location of the defined boundary and to resolve between themselves any factual issues which might arise in the course thereof. The question which arises is whether the provisions of the Imperial Acts of 1850 and 1855 impliedly conferred such power and authority. (at p120)

18. A boundary described in general terms by reference to geographical features such as the course and whole watercourse of a named river must, for its practical application, be translated into at least a perceived line on the terrain. As has been mentioned, the River Murray was unsurveyed in 1855. Questions of the identification of the river itself, its course and its watercourse needed to be determined before the boundary defined by the Imperial Acts could be identified at any particular place. It was inevitable that questions and disputes would arise between the Colonies in the course of such identification of the defined boundary line. There was no local court invested with jurisdiction authoritatively to determine questions between the Colonies as to the boundaries of their respective territories. It could not have been the intention of the Imperial Parliament that every such question which arose in the determination of the defined boundary should be resolved by joint legislative action. To the contrary, as has been mentioned, the proviso to s. V of the Act of 1855 was concerned with a defining of the boundary "in any different Manner" and not with the actual identification of the boundary which had been defined. Nor, bearing in mind the means of communication between Downing Street and the colonies in the mid-nineteenth century, could it have been intended that the limitless number of questions which might arise in the physical identification of the defined boundary should be capable of definitive resolution only by reference to London for legislative or executive action or the advice of the Judicial Committee notwithstanding that the local colonial administrations were in agreement either as to the answer to the particular question or as to an appropriate on the spot procedure for obtaining that answer. As Isaacs J. said in South Australia v. Victoria (1911) 12 CLR, at pp 723-724 :
"The necessity of delimitation might plainly arise suddenly and urgently - in those days communication with London was tedious and protracted - instant action was necessary to protect life and property, to restrain lawlessness and punish crime, as well as to promote settlement. The Imperial authorities had not undertaken the task of delimitation, the Governor's Commissions did not contain any restriction in this respect, and the irresistible inference, to my mind, is that the task had been left to the local authorities, who were assigned functions and responsibilities side by side, and with no other means of fulfilling them, and therefore it was by necessary implication an act within the scope of their authority and within their powers. . . . And, once done, it was of the essence of the matter that it should be permanent. A boundary line known to be incorrect and delimited as a mere passing convenience, simply to establish liability for murder and to try and punish offenders, can hardly be conceived as even a temporary compliance with the paramount law".
A similar approach was adopted by the Judicial Committee of the Privy Council when the case of South Australia v. Victoria went on appeal (1914) 18 CLR 115, at pp 140-141 . Their Lordships, after remarking that the letters patent of 19 February, 1836 which fixed the boundary between the Province of South Australia and the Colony of New South Wales as the meridian of the 141st degree of east longitude had the "authority and force of an Imperial Statute", said:

". . . To define a boundary for such purposes it is necessary that the boundary line should be described or ascertainable on the actual surface of the earth. In the case of such a boundary as that defined by the Letters Patent it was necessary in order to accomplish this that there should be an Executive act so defining and representing the enacted boundary; and seeing that such an Executive act was and must have been known to be essential to render the provision in the Letters Patent a boundary such as was needful for the purposes of the Act, their Lordships have no doubt that on well-known principles of the interpretation of Statutes the Letters Patent must be taken to have implied and authorized the delineation and determination of the effective boundary by such an Executive Act. . . . It is impossible for authorities to settle provisionally between themselves what area of jurisdiction they will take. The rights and liberties of the inhabitants of the country are expressly settled by the Statute, and such a suggestion would imply that the legislature contemplated that the authorities should without any warrant suspend as they might find most convenient its express provisions. But furthermore, can it be supposed that it was the intention of the legislature and of the King in Council that the authorities should expose themselves ex necessitate to actions by persons over whom they have exercised jurisdiction prior to some redetermination of the boundary line in places where it has been ascertained that their jurisdiction did not legally extend? The only alternative is that they should on both sides abstain from exercising jurisdiction over any part of the doubtful territory, and this would be to permit the creation of an Alsatia in which criminals would enjoy full protection. And we are asked to accept an interpretation which entails all these grave difficulties, in lieu of holding that the legislation carries with it an implied power to the Executive to do such acts as are and are known to be necessary to translate the directions of the Letters Patent into an actual boundary in the practical sense of the word.

Their Lordships therefore hold that on the true construction of the Letters Patent it was contemplated that the boundary line of the 141st meridian of east longitude should be ascertained and represented on the surface of the earth so as to form a boundary line dividing the two Colonies, and that it therefore implicitly gave to the Executives of the two Colonies power to do such acts as were necessary for permanently fixing such boundary". (at p122)

19. It is true that the need for delineation and determination of the actual boundary line is greater, and in the mid-nineteenth century involved a greater margin for error, in the case of a boundary defined as being constituted by a meridian of longitude than in the case of a boundary defined by reference to the course of a river. In both cases, however, the definition of the boundary is such as to require the local delineation and determination of the actual boundary line in any particular place. The considerations which led, in South Australia v. Victoria (1914) 18 CLR, at p 141 , to the conclusion that there was implicit in the letters patent fixing the boundary a grant of power to the Executives of the two Colonies "to do such acts as were necessary for permanently fixing such boundary" are applicable to the provisions of the Imperial Acts of 1850 and 1855 fixing the boundary between New South Wales and Victoria. In our view, those provisions contained an implied grant of power and authority to the local administrations of the two Colonies to delineate and determine the actual boundary line on the surface of the earth and to resolve, by accord or agreement reached in good faith for that purpose, any questions of the identification of the River Murray, its course and its whole watercourse which might arise in that delineation and determination. (at p123)

20. The implied power and authority of the colonial administrators to ascertain and determine, by executive action, the defined boundary on the surface of the earth was not taken away by the enactment, in 1861, of the Imperial Act 24 &25 Vict. c. 44 (the Queensland Government Act). Section 5 of that Statute provided that it should be lawful from time to time for the Governors of contiguous Australian colonies, with the advice of their Executive Councils, by any instrument under their joint hands and seals, to determine or alter the common boundary of such colonies and that "the Boundary described in any such Instrument shall be deemed to be, within the Limits there laid down, the true Boundary of (the) said Colonies, so soon as Her Majesty's Approval of such Instrument shall have been proclaimed in either of such Colonies by the Governor thereof". The procedure of an instrument under the joint hands and seals of the Governors which would only become effective after reference to the Sovereign in London was plainly not appropriate for the determination of ordinary issues of fact arising in the translation of a general definition of a boundary into a perceived boundary line of the terrain. The reference to "the Boundary described" would indicate that, as with the proviso to Section V of the Act of 1855, the determination or alteration envisaged was of the description of the boundary rather than the ascertainment of the actual boundary line. In South Australia v. Victoria (1914) 18 CLR, at p 135 the Privy Council expressly held that the Statute of 24 &25 Victoria did not take away from the governments of the interested colonies the rights or powers which they already possessed to ascertain and determine the actual boundary line on the surface of the earth. (at p123)

21. It follows that the Governments of New South Wales and Victoria had, in 1876, the authority, by appropriate joint executive action, to resolve issues and questions which might arise in translating the description or definition of the boundary contained in the Imperial Acts into an agreed boundary line. Provided that such joint action was engaged in in good faith for the genuine purpose of determining the actual boundary line which resulted from the application of the definition or description in the Imperial Acts, the boundary line so determined was, subject to two possible qualifications, binding upon the Colonies and those claiming through them. The two possible qualifications are that any such determination may have been subject to effective contemporaneous challenge by any person whose status or rights were affected thereby and that the determination of the boundary may have been subject to being "revised by the Sovereign" (see South Australia v. Victoria (1911) 12 CLR at p 704 ). It is unnecessary to consider the validity or extent of those possible qualifications for the reason that there was, in the present case, neither contemporaneous objection by any person whose status or rights may have been affected nor subsequent review by the Sovereign. (at p124)

22. The procedure adopted by the Colonies of New South Wales and Victoria to resolve the question as to the location of the defined boundary in the vicinity of Beveridge Island was at least adequate in the circumstances which existed in the 1870's. As has been mentioned, the matter was dealt with, on each side, at the level of first Minister acting on behalf of his Government and use was made of the services of surveyors in the employ of each Government. Expenditure was incurred and, presumably, lawfully defrayed from public moneys. It is true that the determination of the boundary line could have been effected or evidenced by proclamations by the Governors of the two Colonies. There was, however, no necessity for any such proclamation for the proper ascertainment and determination, under the implied power and authority conferred by the Imperial Acts of 1850 and 1855, of the location of the boundary line so as to determine whether Beveridge Island lay to the north or south of the defined boundary. The joint executive action of the senior Ministers of the two Colonies was an appropriate and effective method of resolving that matter. (at p124)

23. The above conclusions make it strictly unnecessary to consider whether, even if the initial settlement of the boundary line had been made by the first Ministers of the two Colonies without authority, it would nonetheless be binding by reason of subsequent acceptance and recognition of that boundary line. That question has, however, been fully argued and we propose to state our present view upon it. (at p124)

24. In South Australia v. Victoria (1911) 12 CLR, at pp 704, 706 , Griffith C.J. referred, with approval, to an opinion given by Sir William Murray A-G. (later Lord Mansfield) in 1754 with regard to a boundary dispute between the Colonies of Connecticut and Massachusetts in which he indicated that it was not the practice of the Crown to disturb settlements of boundaries which had been made between colonies and acquiesced in for a considerable time, though originally made without authority. Griffith C.J. expressed, by way of obiter, a view that the long delay which had occurred would be a bar to the claims of South Australia in that case. He added that he thought that the principles of prescription and acquiescence laid down by the United States Supreme Court in Maryland v. West Virginia (1910) 217 US 1 (54 Law Ed 645) "following many previous decisions, and agreeing with those stated by Sir W. Murray, are sound, and should be adopted". We respectfully agree with Griffith C.J. that the principles of prescription and acquiescence were, in an appropriate case, applicable to preclude effective challenge to the location on the terrain of a settled boundary line between contiguous colonies. As the Supreme Court of the United States said in Rhode Island v. Massachusetts (1846) 4 How 591, at p 639 (11 Law Ed 1116, at p 1137) , "for the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary". (at p125)

25. The relevant principles of prescription were succinctly stated by Field J., speaking for the United States Supreme Court, in Virginia v. Tennessee (1893) 148 US 502, at pp 522-523 (37 Law Ed 537, at p 544) in a passage which was subsequently quoted with approval in Maryland v. West Virginia (1910) 217 US at p 42 (54 Law Ed, at p 658) :
"Independently of any effect due to the compact as such, a boundary line between States or provinces, as between private persons, which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary. Lord Hardwicke in Penn v. Lord Baltimore (1750) 1 Vesey Sen 444, at p 448 ; Boyd v. Graves (1819) 4 Wheat 513 ; Rhode Island v. Massachusetts (1838) 12 Pet 657, at p 734 ; United States v. Stone (1865) 2 Wall 525, at p 537 ; Kellogg v. Smith (1851) 7 Cush 375, at p 382 ; Chenery v. Waltham (1851) 8 Cush 327 ; Hunt on Boundaries, 3d ed., p. 306".

These principles are analogous to the doctrine of adverse possession established in the common law at least since the Statute 21 Jac. 1 c. 16: possession for 20 years is "proof of seisin" (see, generally, Buller's Nisi Prius, 4th ed. (1785), p. 103; Holdsworth, A History of English Law, vol. VII 2nd ed., p. 64; Doe d. Lewis v. Davies (1837) 2 M &W 503, at p 516 (150 ER 856, at p 862) , per Parke B.). However, in relation to the boundaries of former colonies the courts both in the United Kingdom and the United States have regarded it as necessary that there should be an acquiescence by one side in the claims of the other as well as an assertion and exercise of sovereignty by the other for a long period (see Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App Cas 394, at pp 420-421 and Arkansas v. Tennessee (1940) 310 US 563, at pp 569-570 (84 Law Ed 1362, at p 1366) and cases there cited). We need not consider whether for this purpose acquiescence and prescription should properly be regarded as separate doctrines (a view which appears to be taken by Blum, Historic Titles in International Law, (1965) pp. 29-31) or whether acquiescence is one of the elements necessary for the acquisition of prescriptive title (which seems to be the view of Professor O'Connell, International Law, 2nd ed., (1970), vol. 1, pp. 423-424, and MacGibbon, "The Scope of Acquiescence in International Law", British Yearbook of International Law, vol. 31 (1954), 143, at pp. 182-183). In the present case there was acquiescence as well as assertion of power and jurisdiction for a long period. (at p126)

26. The settlement of the boundary line in the vicinity of Beveridge Island as running along the southern edge of the watercourse of the northern stream with the consequence that Beveridge Island was part of the territory of Victoria remained unrevised and unchallenged from 1876 until New South Wales and Victoria became original States of the Commonwealth in 1901. In the years between 1876 and 1901 the boundary line, based on the agreed identification of the River Murray at the relevant place, was asserted and acted upon by Victoria and recognized and accepted by New South Wales. Even if, contary to our view, the orignal accord between the two Colonies had been without authority, we are, as at present advised, of the view that the principles of prescription were, by 1901, applicable to preclude challenge to the settled boundary line along the bank of the northern stream. Nothing has happened since Federation which would alter that position. (at p126)

27. It should, perhaps, be expressly mentioned that there has been no need, in the present case, to consider whether the principles of prescription may operate under the Constitution so as to confirm a boundary line which was not settled as at 1901. Nor has there been any occasion to examine whether the implied grant of power and authority to New South Wales and Victoria to determine, by appropriate joint executive action, the location of the boundary defined by the Imperial Acts of 1850 and 1855 survived the enactment of the Constitution. (at p127)

28. The appeal should be dismissed with costs. (at p127)

Orders

Appeal dismissed with costs.